Case detailB a c k
Article 5 2. (a)
Article 5 2. (b)
|National ID||Ombudsman of the Consumer 5th of December 2012 (Νo of protocol 10793)|
|Common name||Decision type||Other|
|Court||Συνήγορος του καταναλωτή||Plaintiff(s)||Unknown|
|Court translation||Ombudsman of the Consumer||Defendant(s)||Unknown|
|Keywords||after-sales service, material distortion, material information, product characteristics, replacement|
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It is an unfair commercial practice to refuse to grant to the consumer a product’s extensive guarantee, including replacement in case of theft of the product, in case the conditions of this guarantee are not fulfilled, when this guarantee is broadly advertised without any explicit constraints or restrictions in order to activate it.
The Ombudsman of the Consumer received a complaint from the plaintiff on 24 January 2011. In this complaint, the plaintiff mentioned that on 22 May 2010 he bought a laptop of the defendant, a company selling electronic equipment. As mentioned in the relevant advertisement of the defendant, this laptop was covered by a guarantee of replacement in case of accident or theft which would take place within one year from the purchase.
On 21 January 2011, there was a burglary in the house of the plaintiff, which the plaintiff had declared to the Police. Among other things, the laptop was stolen. When the plaintiff communicated this to the defendant, the plaintiff was informed that the advertised extensive guarantee which covered also cases of burglary was not applicable in his case. The defendant asserted that the plaintiff had not, in violation of the conditions to enjoy the guarantee, declared electronically the details of the burglary within seven working days from the day of purchase. As a result, the defendant refused to replace the laptop concerned.
During proceedings, it was proven that the plaintiff bought a laptop following an advertisement of the defendant. This ad promoted the sale of a computer that was covered by an extensive guarantee that included also the replacement of the device in case of theft, and this for purchases made in Greece during a specific period of time (from 1 April 2010 until 30 June 2010). The plaintiff had electronically registered his computer in order to activate the guarantee provided. As soon as the registration was completed, he then received an electronic message of guarantee from the defendant as well as the Guarantee Certificate. However, the plaintiff was never informed in an explicit manner that in order to receive the extensive guarantee advertised, he should have made also a supplementary electronic registration.
Following the above, given that the computer was bought within the period defined by the defendant for the provision of the extensive guarantee and that the plaintiff had electronically registered on the website of the defendant as certified by the guarantee certificate, the plaintiff could reasonably expect that he had activated the extensive guarantee advertised rather than the standard statutory one.
Is it an unfair commercial practice to refuse to grant to the consumer a product’s extensive guarantee, including replacement in case of theft of the product, in case the conditions of this guarantee are not fulfilled, when this guarantee is broadly advertised without any explicit constraints or restrictions in order to activate it?
The Ombudsman held (among others) that the plaintiff had already electronically registered on the day he purchased the laptop in order to receive the extensive guarantee advertised. By receiving the guarantee certificate from the defendant, the plaintiff could reasonably expect that he had actually received the extensive guarantee rather than the statutory (standard) one. In addition, the defendant did not discriminate between the two guarantees nor did it make any specific reference to the additional procedure needed to secure the extensive guarantee.
The Ombudsman also held that the advertising message regarding the provision of the extensive guarantee is a promotional action targeted to attract clients. Thus, consumer could reasonably have the impression that all computers bought within that period were covered by the extensive guarantee advertised by the defendant.
In addition, so the Ombudsman held, the defendant unlawfully required an electronic registration of the plaintiff (or any consumer) in order to “activate” the statutory (standard) product guarantee, which is in any case valid with or without registration. This practice could also mislead the consumer. The latter could reasonable assume that by proceeding to the electronic registration of the laptop on the defendant’s website and by receiving the relative Certificate of Guarantee, he had actually received the extensive guarantee rather than the statutory (standard) one.
Moreover, the Ombudsman decided that the extra guarantee to replace the computer in case of loss due to theft, is an important competitive advantage and that this is likely to constitute a decisive factor for consumers to choose the specific product from the defendant.
The Ombudsman finally ruled that the plaintiff was not informed in an explicit, complete, specific and understandable manner about the distinction between the statutory and the additional guarantee, contrary to the requirement of acting in accordance with professional diligence.
|URL Decision||Decision full text|
The Ombudsman of the Consumer recommended to the defendant to replace the computer of the plaintiff, by applying the provisions laid down in the extensive guarantee.
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